Judgment No. 4435
1. The EPO shall reimburse the complainant the amounts deducted for the full or part working days on which he was on strike in 2013 and 2014, with interest at 5 per cent per annum, less the amounts which could have been deducted under the Service Regulations as they existed before the amendments made by CA/D 5/13.
2. The EPO shall pay the complainant 800 euros costs.
3. All other claims are dismissed or are moot.
The complainant, who is a former permanent employee of the European Patent Office, challenges the deductions from his remuneration that were made in respect of his absences for strike participation as well as the lawfulness of the general normative decisions on which those deductions were based.
complaint allowed; salary; deduction; hidden disciplinary measure; right to strike; strike
[T]he complainant impugns the two specific decisions to deduct amounts from his salary [...]. Those decisions were individual decisions. Accordingly and consistent with the Tribunal’s existing case law, in challenging those individual decisions the complainant can challenge the general decision upon which the individual decisions are based and, in this particular case, the application of an amended statutory rule allegedly in breach of the complainant’s right to strike (see, for example, Judgment 2089, consideration 2).
ILOAT Judgment(s): 2089
general decision; individual decision; payslip
Employees who strike by ceasing work are deploying a tool incidental to collective bargaining to place pressure on their employer, often in the context of a dispute about preserving or improving wages and working conditions, workplace safety, dismissals and freedom of association amongst other things. It is a tool employees have to redress the imbalance of power between them and their employer. Absent a right to strike, it is open to an employer to ignore entreaties by employees advanced collectively to consider, let alone respond to, their grievances about wages and working conditions or, additionally but not exhaustively, the other matters referred to at the beginning of this consideration. However, at least ordinarily, the price the employees pay for deploying the tool is that they forfeit the remuneration they would otherwise have received had they worked (see Judgment 615, consideration 4).
ILOAT Judgment(s): 615
right to strike; strike
The question that immediately arises, in the Tribunal’s view, is whether Article 65(1)(c) is punitive. In its pleas, the EPO acknowledges that the 1/30 method would still be used to calculate salary deductions for other authorized absences which include unpaid leave on personal grounds, parental leave and family leave. The EPO argues absences on such leave include weekend days as part of, to use the EPO’s expression, the absence period (because such leave must be for a minimum of 14 days), which justifies the use of the 1/30 method. But this, in the context of the present discussion, is a flawed argument. To speak of an “absence period” obscures the fact that if, for example, a member of staff was on 14 days authorized leave on personal grounds, she or he would, at least ordinarily, be absent from work for 10 working days. In relation to each of those working days 1/30 of the monthly salary is deducted. Conceptually, weekend days are days of rest for which the employer pays.
Moreover, if in any respect, the deduction for working days on strike could materially exceed, in aggregate, the amount a staff member would have earned had they worked, then the provision is punitive in character. The complainant has demonstrated this is so by reference to an example involving a strike for an entire month where the number of working days for that month exceeds 20 (a common occurrence). In such a circumstance, the amount deducted for working days on strike for that month by application of Article 65(1)(c) would exceed the monthly salary payable for that month.
While the following, of itself, does not establish Article 65(1)(c) is punitive, it is nonetheless the position that the amount deducted for each day of unauthorised absence (which is, prima facie, misconduct) is the same as the amount deducted for each day a member of staff is on strike, which is entirely lawful conduct. This lends support to a conclusion that Article 65(1)(c) is punitive. The EPO relies on observations in Judgment 566, consideration 5, in which the Tribunal said: “Even where a strike is not an abuse of right an organisation would of course be entitled to make special rules on salary deductions different from the rules on absence from duty for other reasons”. However, these observations cannot be taken to be a license to adopt rules in relation to salary deductions for absences on strike which are of a punitive character.
salary; deduction; hidden disciplinary measure; right to strike; strike
A further issue raised by the complainant concerns the procedures adopted in the internal appeal proceedings. He argues that when he filed his appeals the governing procedural rules conferred a right to an oral hearing if requested. When the time came for the hearing, the procedural rules, so he argues, had been altered and deprived him of this right and the Appeals Committee acted as if this was so. These circumstances found a claim by the complainant for moral damages. But even if the complainant’s analysis is correct, having regard to the subject matter of the internal appeals and the issues they raised (almost entirely legal), it is difficult to see what prejudice the complainant suffered by being restricted to written submissions. Put slightly differently, a complainant must establish the foundation for the award of moral damages (see Judgments 4231, consideration 15, and 4147, consideration 13). As the complainant has singularly failed to do so in this case, his claim for moral damages on this basis will be dismissed.
ILOAT Judgment(s): 4147, 4231
moral injury; oral proceedings; internal procedure
In circumstances where the deduction actually made for specified conduct was unlawful under the subsisting Service Regulations, it is appropriate to apply the pre-existing Service Regulations (see Judgment 365, consideration 4).
ILOAT Judgment(s): 365
applicable law; staff regulations and rules; deduction